Software patents, revisited

So, seven years after I managed to make slashdot, now I’ve managed to make the front page of Hacker News. I have to say, the IsNot patent is the gift that just keeps on giving. I think my comments from the original patent discussion still apply, quoted here since the original post has been lost:

In the wake of the IsNot patent brouhaha, aside from the "you are scum" comments, people have had several reasonable questions about my own feelings about the situation. So let me pause and talk about software patents for a moment. Lest there be any question about this, what follows are my own personal feelings about the matter and have nothing to do with official Microsoft policy.

Personally, I don’t believe software patents are a good idea. I realize that algorithms lie in that grey area between a mechanical process (which is patentable) and an abstract idea (which is not), but at a purely practical level I think that software patents generally do much more harm than good. As such, I’d like to see them go away and the US patent office focus on more productive tasks. I have nothing but contempt for any company that tries to use patents to achieve what they could not through purely competitive means. This includes Microsoft, should they ever choose to do so or have they ever chosen to do so. (I’m not aware of any such situation, but I’m hardly omniscient.)

However, software patents do exist. So while the good fight goes on to get rid of them, I also believe that it would be dangerously naive to not play the game as best we can in the meantime in as principled a way as possible. There are a lot of people who would love nothing more than to just take a piece out of Microsoft either because they can or because they want to get rich and not for any better reason than that. I’ve been around long enough to see the kind of trouble that patents can cause us, and so I believe the best defense is a good offense. While I don’t believe in using patents in an unprovoked way, I do believe in having a robust patent arsenal with which to defend ourselves should someone get it in their head that they want to hold our products hostage for money or just to cause trouble.

One of the most unfortunate aspect of the software patent system is that there is a distinct advantage, should you have the money to do so, to try and patent everything under the sun in the hopes that something will stick. If someone has a patent on "a biological system used to aspirate oxygen gases to fuel biological processes" (i.e. lungs), I wouldn’t be surprised. (If there isn’t, no fair submitting the patent before me!) This is bad both because it jams up a system that’s not really equipped to handle software patents well in the first place and because it increases the likelihood of broad, random patents slipping through the system. Microsoft has been as much a victim of this as anyone else, and yet we’re right there in there with everyone else, playing the game. It’s become a Mexican standoff, and there’s no good way out at the moment short of a broad consensus to end the game at the legislative level.

So that’s how I feel about software patents in general. As far as the specific IsNot patent goes, I will say that at a personal level, I do not feel particularly proud of my involvement in the patent process in this case. Beyond that, there’s not much to say: many comments addressed legal questions which I am woefully unqualified to comment on and for which speculation would be very

To my original blog post, I would add a few things. The first thing is that, thankfully, I believe the IsNot patent has long since either been rejected or abandoned, and in this things are exactly as they should be. The second thing is that while I still continue to hope that we will rid ourselves of software patents, I recognize now in hindsight that the general problem of patents—that there is a strong financial incentive to patent everything under the sun—is an inherent trait of a game that gives the “winners” huge economic advantages. Even if software patents disappeared tomorrow, there’d still be lots of stupid and silly patent applications in non-software areas. Since I think that, overall, the patent system is a good idea, this means some aspects of this are simply inevitable. (Still doesn’t justify the IsNot patent application, though. That was just dumb.)

My final comment regards my assertion that I would hold “nothing but contempt” for any company that used software patents in an offensive, rather than a purely defensive, manner. That is still the case and, sadly, I am profoundly disappointed with some of the things that Microsoft has done in this area since I wrote that post in 2005. The best I can say is that I continue to hope that we will do better in the future.

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